S. Ct. Will Consider Constitutionality of Laws Limiting Social Media Platform Moderation Decisions

The Supreme Court has just agreed to hear these cases, limited to these questions (as articulated by the Solicitor General's brief for the federal government):

These cases concern laws enacted by Florida and Texas to regulate major social media platforms like Facebook, YouTube, and X (formerly known as Twitter). The two laws differ in some respects, but both restrict platforms' ability to engage in content moderation by removing, editing, or arranging user-generated content; require platforms to provide individualized explanations for certain forms of content moderation; and require general disclosures about platforms' content-moderation practices. The questions presented are:
1. Whether the laws' content-moderation restrictions comply with the First Amendment.
2. Whether the laws' individualized-explanation requirements comply with the First Amendment.

The Court declined to grant review on two other questions, though they might still indirectly play a role in the analysis of the first two questions:

3. Whether the laws' general-disclosure provisions comply with the First Amendment.
4. Whether the laws violate the First Amendment because they were motivated by viewpoint discrimination.

I'm traveling today, so I don't have much to add right now, but I thought I'd put up a post so our readers can discuss the matter. I've also written a law review article on this general topic, in Treating Social Media Platforms Like Common Carriers?

Comments

[Dr. Ed 2]

This is going to be very interesting. An end of Section 230?

[loki13]

Did you not even read the post? It's not long.

Hint- it actually gives you the questions presented.

[loki13]

Well, this is hardly surprising. Obviously, the 5th and 11th Circuit are ... not in agreement.

I am going to add a new heuristic-

First one- if there is a Supreme Court decision, and you want to know which 'side' is right without reading the opinion ... then if Kagan and Roberts agree, that is the right side. If they disagree, it's whatever side Alito is not on.

Second one- if there is a circuit split, and you want to know which Circuit is correct, it's not the 5th.

[Noscitur a sociis]

First one- if there is a Supreme Court decision, and you want to know which ‘side’ is right without reading the opinion … then if Kagan and Roberts agree, that is the right side. If they disagree, it’s whatever side Alito is not on.

I’ve been using this for years (subbing Alito for Sotomayor of course). It works almost perfectly!

[Nige]

So government agencies engaging with platforms using their own reporting procedures and in terms of the platforms' own moderation policies is the worst threat to freedom since sliced bread, but essentially making it illegal for platforms to have an effective moderation policies at all is just fine and dandy?

[loki13]

Consistency is the hobgoblin of PWING THE LIBTARDS!

[Michael Ejercito]

There is a clear legal and ethical difference between requiring social media platforms to treat users equally, and actually telling social media platforms to remove content.

[Sarcastr0]

Users are treated equally. It's the content that you want to be protected.

What content? Oh...you know the one.

[Nige]

Moderating IS treating all people equally – everyone has to obey the terms of service and guidelines. Not to say they and their enforcement can’t be challenged and criticised, but unmoderated forums are how you get 4chan, which, famously, included child porn, and are not for everyone. Stormfront probably has content moderation - but that would be the least objctionable thing about it.

[SRG2]

It is surely obvious to everyone here, regardless of political stripe, that these laws do indeed violate 1A.

It is an entirely different, plausibly even uncorrelated, question, how SCOTUS will rule.

[Michael Ejercito]

No, it is not so obvious. These actually are edge cases.

[Krayt]

How about the constitutionality of deleting section 230, costing hundreds of billions in stock valuation losses as their freewheeling, carefree business model collapses, unless they censor the way the politicians wanted, which was done, which these equally silly laws are trying to fight against?

Neither should be happening, but to, accurately, claim this is censorship, while facetiously lying the section 230 threats, which yielded censorship behaviors exactly in accordance with politicians' demands, is private companies doing their free speech thing of their own free will, is beyond laughable.

[Stephen Lathrop]

Krayt, you keep arguing as if social media platforms have a right to Section 230. Which is another way to say Congress is constitutionally forbidden to change Section 230, or to repeal it. What legal principle do you think leads to that conclusion?

[Sarcastr0]

This fictional account has become an article of faith to you. One that you must proselytize, and who cares if it's true.

censorship behaviors exactly in accordance with politicians’ demands
False.

[Mr. Bumble]

Surprised that no one has seen fit to post on the SC's decision to hear oral arguments on Tuesday regarding the appeal of the 5th Circuit decision holding that the funding mechanism for the CFCB is unconstitutional.

[sleepy cheeks]

My prediction for the outcome:
The first question will be answered that the policies violate the first amendment.
Questions 2 & 3 will be answered that these are regulations of business conduct and states are allowed to require disclosures.
Question 4 will be answered in the negative.

[NOVA Lawyer]

Agreed on Question One.

I disagree on Question Two. The Supreme Court will not allow 50 states to set 50 compelled speech standards for multi-national companies to follow. They would uphold requiring social media companies to put something in their terms of service about their moderation policies and whether they give individualized explanations, but it's too far to make them actually give individualized explanations in circumstances described by each state that passes one of these laws.

Questions Three and Four won't be directly answered.

[David Nieporent]

Questions 2 & 3 will be answered that these are regulations of business conduct and states are allowed to require disclosures.

Question 3 won't be answered because SCOTUS didn't grant cert on that question. As to Question 2: could a state require the New York Times to file a monthly report with the government to explain why it chose to print certain letters to the editor but not others? Could it require Random House to explain which manuscripts it chose to accept and why? No, these are not business regulations; these are attempts to interfere with the speech decisions of these companies.

[DRM]

I don’t know how the Supreme Court will rule. But it’s going to be fascinating watching the many people who support both Net Neutrality and social media gatekeeping try to answer the first of the certified questions.

[Sarcastr0]

Content provider are not ISPs.

Access to the Internet is not the same as access to twitter.

ISPs are not engaging in expressive conduct.

[Jonathan Affleck]

Bailment of content in a backend server is not expressive conduct for either a social medium service or an email service like Gmail.

An ISP meets the definition of an ICS. A social medium platform like Twitter and an email service like Gmail do not.

Xfinity (my ISP) definitely provides expressive content.

[David Nieporent]

Bailment of content in a backend server

Once more: legal (and technical) gibberish. The only question is whether you know less about the Internet or less about the law.

is not expressive conduct

Now, this part would be true, if we were talking about a bailment; storing something is not expressive conduct for 1A purposes. But publishing it is, and it's that conduct we're discussing.

A social medium platform like Twitter and an email service like Gmail do not.

You know this is a lie. You've been told this is a lie. This is not even a controversial issue; every court on the planet has told you that. Not a single English speaking person anywhere thinks 230 says what you pretend it says. The entire point of 230 was to protect those sorts of companies — not ISPs.

[DRM]

All right, Sarcastr0, go ahead, explain exactly how an ISP choosing to refuse to transmit, say, Stormfront, on the grounds that Neo-Nazi propaganda is bad, would not be expressive conduct by the ISP.

[Jonathan Affleck]

The technological overview below contains a 5 paragraphs that explain — I believe — everything a judge needs to know.

In 1901 the Supreme Court reversed itself and ruled that a telegraph is a common carrier. The transmission error problem, which worried the Supreme Court in the 19th century, does not exist in the context of the Internet.

Technological Overview

1. 47 U.S. Code § 230 states that “the term ‘Internet’ means the international computer network of both Federal and non-Federal interoperable packet switched data networks.” Non-Federal interoperable packet switched data networks include state and private interoperable packet switched data networks. Government packet switched data networks consist of Federal and state packet switched data networks. End user computing devices, which are within and attached to the Internet, can be government or private computing devices. Packet data traffic flows between web or cloud servers and end user computing devices. Government and private web or cloud servers download programs to an end user computing device for the purpose of transporting messages within the packet data traffic data to and from web or cloud servers to end user computing devices. Government and private message traffic is mixed and entwined within mixed, interconnected, and entwined government and private technology.

2. 47 U.S. Code § 230(a) declares that in 1996 the Internet had become “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” to the “benefit of all Americans.” This declaration states that the 1996 Internet is a government-designated public forum. By 1996 the government had spent a tremendous amount of public money in the development of the Internet. 47 U.S. Code § 230(b) declares (a) that continuation of this development of the Internet is a policy of the US government and (b) that it is another policy of the US government to “maximize user control over what information is received by individuals, families, and schools who use the Internet.” The US government continues to spend tremendous amount of public money on government networks within the Internet, on government technology within the Internet, and on government end user computing devices within the Internet. Even though the US government has subcontracted a small amount of the management of the Internet to private entities, which the US government often funds and in which the US government often participates, a substantial part maybe most of the US Internet belongs to the US government or is funded by the US government. The US Internet remains a government-designated public forum until the US government repeals 47 U.S. Code § 230.

3. A 1996 Interactive Computer Service (ICS) like AOL, Prodigy, or Compuserve created its own public forum inside and outside the government-designated public forum of the Internet by means of common carriage of messages from a user of the ICS to another user of the ICS. Such a 1996 ICS also “[included] specifically a service or system that [provided] access to the Internet.” A 1996 ICS also provided service that was not common carriage. While a 2023 social medium platform creates its own public forum within the government-designated public forum of the Internet by means of common carriage of messages from a user of the social medium platform to another user of the social medium platform, a 2023 social medium platform does not provide access to the Internet. Because a 2023 social medium platform does not “include specifically a service or system that provides access to the Internet,” a 2023 social medium platform does not meet the definition of an ICS. A 2023 social medium platform provides an email service that has a niftier user interface than an ordinary Internet email service.[1] Like an ordinary Internet email service, a 2023 social medium platform has bailment of a user’s message in a backend server. Such bailment is not speech of either the Internet mail service or the 2023 social medium platform, but the bailment is valuable to the 2023 social medium platform because the user’s message can be used to attract the eyes of another user of the 2023 social medium platform to a web page of the 2023 social medium platform. “Eyes-on-a-page” is a valuable item to the 2023 social medium platform. A 2023 social medium transports messages throughout the Internet, but little of the Internet belongs to a 2023 social medium platform. Most of the US Internet belongs to the government and to other private entities or individuals.

4. A state becomes inextricably entwined with a 2023 social medium platform when it uses the public forum of the social medium platform to create a state public forum, to make state announcements like job postings, or to discuss state legal procedures or rules. The 2023 social medium platform transmits its messages in state networks and runs its software on state end user computing devices. The 2023 social medium platform provides a substitute for a state web or cloud site. Bailment of the state’s messages in a backend server is used to attract “eyes-on-a-page” to a web page of the 2023 social medium platform. Such involvement of the state and the 2023 social medium platform in each other’s business and activities is much more than the grant of a liquor license and represents inextricable entwinement to the point of symbiosis.

5, The state public forum exists within the public forum of the 2023 social medium platform. The 2023 social medium platform’s public forum exists within the government-designated public forum of the Internet. Not only is the Internet a government-designated public forum, but the Internet also belongs to the class of “Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation.” The preceding clause does not require the Internet to be a place of public accommodation but only requires the Internet to be like or as a place of public accommodation. The same logic desegregated a public drinking fountain, which is an establishment supported by state action as a place of public accommodation for drinking water. A public drinking fountain is a device (a valve on a water pipe) and not a place that one can enter. A 2023 social medium platform is located within the Internet because it is located by connection and by IP address within the premises of the Internet. Premises includes grounds and appurtenances, which include wiring.

[1] An ordinary Internet email service like Gmail and a 2023 social medium platform both meet the traditional definition of a telegraph service: a service that transmits a message electrically by wire or by wireless means. In 1901 the Supreme Court reversed itself and ruled that a telegraph is a common carrier. The transmission error problem, which worried the Supreme Court in the 19th century, does not exist in the context of the Internet.

[David Nieporent]

It would be easier to teach a squirrel to play the kazoo than to educate Martillo on these issues.

[Jonathan Affleck]

A social medium platform is no more a publisher or distributor than the USPS is a publisher or distributor when it delivers Time magazine and other publications to subscribers.

Both a social medium platform and also the USPS are common carriers.

In performing common carriage, both a social medium platform and also the USPS have bailment of the property, which is being delivered. Such bailment is not speech either of the social medium platform or of the USPS.

The analogy is obvious if one understands the technology of the Internet, of a telegraph system, of email, and of a social medium platform.

[David Nieporent]

A social medium platform is no more a publisher or distributor

Sure it is. It chooses what content to publish or distribute. That makes it a publisher or distributor.

Also: USPS is a government agency, not a common carrier.

both a social medium platform ... have bailment of the property,

There is no property for them to have bailment of.

if one understands the technology

Technology has literally — in the direct, not ironic, sense of literally — zilch to do with the issue. Understanding technology provides exactly zero insight into these legal questions.

[Jonathan Affleck]

Nieporent claims a social medium platform is an ICS.

47 U.S. Code § 230 - Protection for private blocking and screening of offensive material
(c)Protection for “Good Samaritan” blocking and screening of offensive material
(1)Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

He can't have it both ways.

I point out that a social medium platform like Twitter does not meet the legal definition of an ICS but provides common carriage of a message from a user to another user just as an Email service like Gmail does.

[David Nieporent]

He can’t have it both ways.

I can, in fact, because that’s what the law says.

I point out that a social medium platform like Twitter does not meet the legal definition of an ICS

You do not “point out” that; you assert it, based on functional illiteracy. It meets the definition as every lawyer, court, and English speaking person has told you.

but provides common carriage of a message from a user to another user

It does not. Neither of those things. You seem completely unfamiliar with the business model of social media companies.

[Jonathan Affleck]

Common carrier status is not a question of business model.

SCOTUS has never been asked to rule whether a 2023 social medium platform meets the 1996 definition of an interactive computer service.

Seven years after SCOTUS ruled that a telegraph system did not provide common carriage, SCOTUS ruled that a telegraph system does provide common carriage.

In 1901 there was a much better argument for claiming that a telegraph system does not provide common carriage than there is today for claiming that a 2023 social medium platform meets the 1996 definition of an interactive computer service.

[David Nieporent]

Common carrier status is not a question of business model.

It absolutely is. A common carrier has to, inter alia, hold itself out as serving the general public indiscriminately and being indifferent as to what it is transporting. It also must provide just carriage; when something which might otherwise be a common carrier bundles other services along with that, it no longer constitutes a common carrier.

SCOTUS has never been asked to rule whether a 2023 social medium platform meets the 1996 definition of an interactive computer service.

There are many propositions which are obvious to anyone of more than subnormal intelligence which SCOTUS has never been asked to rule on. This is because they are obvious to anyone of more than subnormal intelligence. SCOTUS resolves controversies; it doesn't decide things that 100% of the population knows to be the case.

[Jonathan Affleck]

In Massachusetts the MBTA (Massachusetts Bay Transportation Authority) explicitly declares itself to be a common carrier. Nothing prevents a government entity from being a common carrier unless the law explicitly states it is not common carrier.

[Jonathan Affleck]

A user's message is his property whether it's a telegraph despatch, an email message, or a message on a social medium property.

This particular issue first surfaced in 1848 with the theft of an unpublished newspaper report by unauthorized reading of a telegraph message. Most recently the issue of intangible intellectual property appeared in 2017 in Missouri.

The Court must first decide whether an email communication is chattel. Chattel is defined as "[m]ovable or transferable property; esp. personal property," and "[p]ersonal chattel is defined as a 'tangible good or an intangible right.'" Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32 S.W.3d 592, 600 (Mo. Ct. App. 2000) (quoting Chattel, Black's Law Dictionary (7th ed. 1999)) (analyzing a claim of malicious trespass). Although not addressing a trespass to chattel claim, the Missouri Supreme Court stated "[p]ersonal property can be either tangible or intangible." Norris v. Norris, 731 S.W.2d 844, 845 (Mo. banc 1987) (citations omitted) (construing a will). Neither party cites a case deciding whether email communications are chattel in Missouri. This is not surprising given the sparse Missouri case law on trespass to chattel. See Tubbs v. Delk, 932 S.W.2d 454, 456 (Mo. Ct. App. 1996) (noting the only Missouri case (as of 1996) where a trespass to chattel claim was tried occurred sometime before 1871) (citing Pope, 47 Mo. 251).

Porters Bldg. Ctrs., Inc. v. Sprint Lumber, Case No. 16-06055-CV-SJ-ODS, 18 (W.D. Mo. Oct. 2, 2017)

The dispute is somewhat artificial. If a message can be read with a device, it must be tangible -- whether it is a telegraph despatch, an email, or a message, which is transported by a social medium platform.

Copyright law nowadays does not worry about the type of substrate as long as there is an identifiable substrate.

[Stephen Lathrop]

Affleck, you could be entirely right in everything you say about internet infrastructure. That would not affect in the slightest the fact that social media companies mostly function as publishers. The most successful among them are the largest publishers the world has ever seen. In fact, they are much too big to serve properly the public life of the nation. Their size and market share deprive the nation of urgently-needed diversity and profusion among publishing outlets.

But as publishers social media get 1A press freedom protection. There is no way around that. There is a way to fix the diversity and profusion problem. Repeal Section 230, and you would presently see renewed abundance and diversity among private publishers.